Legal updates, new research, interesting ideas for students-- past and present-- of LER Prof. Michael H. LeRoy, University of Illinois at Urbana-Champaign. Welcome, also, to friends who are curious about employment and labor law.

Friday, August 11, 2017

Google and Free Speech at Work

Did James Damore have a legal right to publish a manifesto stating that women are biologically unsuited for employment as engineers?

The legal path is muddled.

Generally, a private sector employee has no speech rights in the workplace.

For example, in Dixon v. Coburg Dairy, Inc., a court upheld the firing of a worker who was terminated for failing to remove his lunch box, which displayed the Confederate flag. Dixon argued this was his right to express his “heritage,” and sued under a state law that protects political speech. The court said that political speech is protected in public settings—not in a private employer’s lunch room.

In Cotto v. United Technologies Corp., the employer—a defense contractor— ordered every employee to display a small American flag at his or her work station. Cotto lost his case-- the court said the employer had a right to compel the flying of the flag on its private property.

But Damore has filed a complaint that takes a different path. His case is based on the National Labor Relations Act. Yes, that’s odd—there is no union issue here. But that law protects employee speech very broadly.

Lawyers have made clever uses of the law in nonunion settings, in effect stretching it far beyond the original intent to protect workers who protest in a “labor” context.

Damore's lawsuit-- filed this week-- argues that he was discriminated for view point discrimination—discrimination against a white person, a male, or a conservative.

My best guess? At some point, courts look at legislative intent. The National Labor Relations Act was not enacted to protect Damore’s kind of speech. If that were the case, private businesses would be forced to put up with any and all speech that the employer finds disagreeable, disruptive, or offensive.

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Personal Bio

Published extensively on antitrust in professional sports, immigration and employment, strikes and lockouts, voluntary and mandatory arbitration, employee involvement teams, academic freedom, and labor law implications stemming from national emergencies

Testified before the full U.S. Senate Committee on Labor and Human Resources

Consulted at the request of the President's Council of Economic Advisers in connection with the Taft-Hartley labor dispute involving Pacific Maritime Association and International Longshore and Warehouse Union

Advised the President's Commission on the United States Postal Service (this bi-partisan commission adopted my recommendations for the use of final offer interest arbitration with various postal worker unions)